On 16 July 2018 the Queensland Labor Government released the Queensland Law Reform Commission (QLRC) Review of Termination of Pregnancy Laws report. The report made a series of recommendations, including the draft of a bill that would decriminalise abortion in Queensland.
It is currently unlawful to terminate pregnancy in Queensland, due to sections 224 to 226 of the Criminal Code. As noted in the QLRC report, a termination may be “lawful” if it is “necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail, and in the circumstances not out of proportion to the danger to be averted.” There are currently between 10 000 and 14 000 abortions in Queensland every year. They are mostly performed in the first trimester, with later terminations “comparatively rare”.
Under the current provisions, a person who causes an abortion can be imprisoned for 14 years. A woman who takes something to cause herself a miscarriage can be imprisoned for seven years. Supplying drugs or other instruments used for the purpose of abortion can result in imprisonment for three years.
In 2016 the media reported on a 12 year old girl in Queensland who sought an abortion. Though the girl, her mother and two obstetricians supported her terminating the pregnancy, the process was delayed by a month of legal battles in court over whether she could have the procedure.
The QLRC report includes a draft Termination of Pregnancy Bill 2018. It provides that a medical practitioner may perform a termination on a woman who is not more than 22 weeks pregnant. If the woman is more than 22 weeks pregnant, the medical practitioner must consult with another medical practitioner, who must both form the view that in all the circumstances an abortion should be performed. If there is an emergency, a termination may be performed to save the life of the woman or another unborn child. A woman who seeks an abortion, or tries to carry it out herself, does not commit an offence.
Queensland Premier Annastacia Palaszczuk welcomed the report and the Labor Caucus endorsed the recommendations being put to Parliament. Labor has a majority of 48 seats out of 93. However, there are reports that some Labor politicians oppose the bill. Its passage may depend on whether Liberal National Party politicians will permit a conscience vote. It is set to be tabled in August, with a debate and vote expected in October.
New South Wales recently passed legislation creating “safe access zones” around premises that provide abortion services. However, unlawful abortions are still criminal offences in NSW. A woman who unlawfully administers any drug or noxious thing, or unlawfully uses any instrument or other means to procure her miscarriage, is liable to ten years imprisonment. A person who unlawfully administers any drug or noxious thing, or unlawfully uses any instrument or other means to procure a miscarriage in a woman is liable to ten years imprisonment. A person who unlawfully supplies or procures a drug or other thing so that it can be unlawfully used to procure a miscarriage is liable to five years imprisonment.
The circumstances in which abortions are lawful were established in R v Wald (1971) 3 NSWDCR 25, and expanded in CES v Superclinics (Australia) Pty Ltd  NSWSC 103. In Wald, Levine DCJ held that abortions could be lawful if birth would result in serious danger to the woman’s physical or mental health. Regard could be had to “any economic, social or medical ground” which could reasonably cause such harm. President Kirby in CES held that consideration of the effect of economic demands and social circumstances on a woman’s psychological health should be expanded to after birth, to “the possibility that the patient's psychological state might be threatened after the birth of the child, e.g. due to the very economic and social circumstances in which she will then probably find herself.”
The impending debate on abortion in Queensland is a welcome reminder of the need for legal reform in NSW. In August last year, a woman in Sydney was prosecuted and convicted for procuring drugs from the internet to cause a termination of her pregnancy. The drugs were unsuccessful in causing a miscarriage and made her feel unwell. She went to hospital for treatment and her baby was delivered by caesarean section. The Magistrate sentenced her to a three-year good behaviour bond.
As the Queensland Law Reform Commission Report recognises, “termination should be treated as a health issue rather than as a criminal matter”. NSW should show the same regard for women’s bodily autonomy, and decriminalise abortion.
NSW Council for Civil Liberties
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